Abbas v. Neter-Nu

• Court: Indiana Appellate Court
• Writing for the Court: Brown, Judge.
• Docket Number: 23A-CT-438
• Decision Date: 11 June 2024
• Parties: Zainab Abbas, M.D., Morgan Mittler, R.N., and Methodist Hospital, Appellants v. Hetep Bilal "Franklyn" Neter-Nu, Appellee

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Zainab Abbas, M.D., Morgan Mittler, R.N., and Methodist Hospital, Appellants v. Hetep Bilal "Franklyn" Neter-Nu, Appellee

No. 23A-CT-438

Court of Appeals of Indiana

June 11, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Lake Superior Court The Honorable Bruce D. Parent Judge Trial Court Cause No. 45D11-1809-CT-541

ATTORNEYS FOR APPELLANTS Michael E. O'Neill Kelly K McFadden Julie M. Blair O'Neill McFadden & Willett LLP Schererville, Indiana

ATTORNEYS FOR APPELLEES David J. Cutshaw Gabriel A. Hawkins Edward B. Mulligan, V Justin C. Kuhn Keith C. Michaels Cohen & Malad, LLP Indianapolis, Indiana

MEMORANDUM DECISION

Brown, Judge.

[¶1] Zainab Abbas, M.D., Morgan Mittler, R.N., and Methodist Hospital (collectively, "Defendants") appeal the judgment against them in this medical malpractice action. Finding the trial court erred in instructing the jury and that there were other cumulative errors, we reverse and remand.

Facts and Procedural History

[¶2] On July 27, 2015, Hetep Bilal "Franklyn" Neter-Nu was taken to the emergency room at Methodist Hospital in Gary for nausea and vomiting and was administered fluids and medications. Morgan Mittler, R.N., ("Nurse Mittler") was a member of the team responsible for Neter-Nu's care. Nurse Mittler checked on Neter-Nu and noticed an IV was out of his arm and fluids were pooling on the floor. At approximately 5:13 p.m., Nurse Mittler placed an IV in Neter-Nu's right foot. Neter-Nu complained of pain to his right foot, and the IV was removed at 12:30 a.m. or 4:34 a.m. on July 28, 2015.^[1]

[¶3] Later on July 28 and again on July 29, Neter-Nu complained of right foot pain, and Dr. Clive Alonzo ordered an x-ray. The x-ray was "negative for fx or soft tissue swelling," and a heat pack was applied. Exhibits Volume 13 at 34. A physical therapist evaluated Neter-Nu and reported that he complained of increased pain in his right foot and toes, he experienced a burning sensation in the foot, he did not place any weight on the foot, and he did not have movement in his right toes. A nurse's note on July 30 stated: "Assessment of anterior right foot of patient intact with slight ecchymosis. Ecchymosis not outside of demarcation area. Foot is warm and dry, and tender to touch. Warm compression given by tech and nurse pm. Circulation Movement Sensation present. No reports of numbness to right foot or toes. Pedal pulses strong and present." Id. at 49.

[¶4] On July 30, Dr. Abbas discharged Neter-Nu. The discharge summary stated: "Right foot swelling. 2/2 iv infiltration. Swelling much better today, able to move toes, no evidence of infection, Xray negative, pt instructed to take NSAIDS prn for a short duration." Id. at 29. Progress notes for a physical exam by Dr. Abbas on that date stated: "Extremities: No tenderness, No cyanosis, No clubbing. RLE mildly swollen, able to move toes, slight numbness 2/2 left foot, pulses 2+ dorsal and pedal both sides." Id. at 28. The discharge instructions stated: "Activities as tolerated. Use crutches when ambulating. Keep right leg elevated when in bed." Exhibits Volume 11 at 79. The instructions also stated: "Any signs and symptoms of infection, go to nearby hospital. If symptoms persist or become worse, return to emergency room." Id. Neter-Nu was transported to the bus station and rode a bus for about sixteen hours from Gary to Sioux City, Iowa, where his truck had been taken by his employer. Neter-Nu arrived in Sioux City on Friday, July 31, and checked into a hotel where he stayed until Monday.

[¶5] On Monday, August 3, Neter-Nu went to Siouxland Community Health Center where examination showed "[t]oes are black," "unable to feel right pedal pulse, left pedal pulse strong," "[t]here is hyperpigmentation of right lower extremity around big toe and all other toes to that foot," and "[s]ome Erythema in lower extremity with very cold extremity." Exhibits Volume 13 at 178-180. Neter-Nu was directed to the emergency room. He went to Mercy Medical Center where an arterial ultrasound showed no flow in several of the digits of his right foot. A vascular surgeon "did a Doppler of his foot" and "he had an evident demarcation line along the dorsum of this foot and his first two toes were actually cold and white" and he was "unable to move the distal right extremity." Transcript Volume 13 at 187. He underwent an arterial angiogram which showed "no vessels amenable currently for revascularization." Id. at 183. He was referred to the University of Nebraska Medical Center for a second opinion. Neter-Nu underwent a below the knee amputation of his right leg on August 19, 2015.

[¶6] Neter-Nu filed a proposed complaint with the Indiana Department of Insurance, and a medical review panel unanimously found the evidence did not support the conclusion that Defendants failed to meet the applicable standard of care as charged in the complaint. Neter-Nu filed a complaint with the trial court against Dr. Abbas, Dr. Alonzo, Nurse Mittler, and Methodist Hospital alleging that he underwent the amputation of his right leg due to the damage caused by Nurse Mittler's placement of the IV catheter. Dr. Alonzo was later dismissed from the case.

[¶7] The court held a jury trial. Defendants' counsel proposed an "intervening cause" jury instruction, which the court refused. Transcript Volume 9 at 130. After the evidence closed, Defendants' counsel moved for judgment on the evidence pursuant to Ind. Trial Rule 50 arguing there was no evidence supporting Methodist Hospital's liability except for its vicarious liability based on the conduct of Dr. Abbas and Nurse Mittler. He argued that Neter-Nu's expert witnesses were clear that their opinions related only to Dr. Abbas and Nurse Mittler and no others. The court denied the motion. Defendants' counsel objected to Final Instructions Nos. 8, 10, and 18, arguing they allowed the jury to find Methodist Hospital vicariously liable based on the actions of persons other than Dr. Abbas and Nurse Mittler. Final Instruction Nos. 8, 10, and 18 were given to the jury.

[¶8] The jury returned a verdict against Defendants in the amount of $11 million.^[2]Defendants requested that the verdict be reduced to the statutory maximum of $1,250,000, and Neter-Nu requested prejudgment interest. The court ordered Defendants to pay prejudgment interest of $79,993.40 and entered judgment against them in the amount of $1,329,993.40. Neter-Nu filed a motion to correct error, which the court denied, and Defendants filed a motion to correct error, which was deemed denied.

Discussion

[¶9] Defendants assert reversal is required and argue that the trial court erred in denying their motion for judgment on the evidence under Ind. Trial Rule 50, in giving jury instructions which were not supported by the evidence, and in refusing certain proposed instructions. They also assert the court erred in limiting their ability to reference admitted medical records and in not allowing certain cross-examination. Neter-Nu maintains each of Defendants' claimed errors is without merit.

[¶10] The elements of a medical malpractice claim are (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; and (3) that the breach proximately caused the plaintiff's injuries. Siner v Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016). Health care providers must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class acting under the same or similar circumstances. Overshiner v. Hendricks Reg'l Health, 119 N.E.3d 1124, 1131-1132 (Ind.Ct.App. 2019) (citations omitted).

[¶11] A medical malpractice plaintiff is ordinarily required to present expert opinion that a defendant health care provider's conduct fell below the applicable standard of care. Chi Yun Ho v. Frye, 880 N.E.2d 1192, 1201 (Ind. 2008). Medical negligence is thus not generally a conclusion that may be reached by a jury without such an expert opinion among the evidence presented. Id. Such expert opinion takes on the character of an evidentiary fact in medical malpractice cases. Id.; see also Simmons v. Egwu, 662 N.E.2d 657, 658 (Ind.Ct.App. 1996) (generally, in medical malpractice actions, expert opinion is required "as to the existence and scope of the standard of care which is imposed upon physicians and as to whether particular acts or omissions measure up to the standard of care"), trans. denied. In addition to vicarious liability for tortious acts committed by persons acting within the scope of their employment, a hospital may be directly liable under a theory of negligent training, supervision, and retention. See Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022).

A. Defendants' Motion for Judgment on the Evidence

[¶12] We first address Defendants' motion for judgment on the evidence in which they argued there was no evidence supporting Methodist Hospital's liability except for its vicarious liability based on the conduct of Dr. Abbas and Nurse Mittler. Ind. Trial Rule 50(A) provides:

Where all or some of the issues in a case tried before a jury . . . are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict....

The purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence presented by the non-movant. Purcell v....